essay on judiciary system in pakistan

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Essay: The judicial system in Pakistan

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The current judicial system of Pakistan roots back to the medieval period and even before. The judicial system that we practice today has advanced over a long period of time, crossing roughly over a whole era. The system has passed through several epochs, covering the Hindu era, Muslim period including the Mughal Empire, British colonial period and post-independence chapter. Notwithstanding the successive changes i.e. one rule/dynasty substituted by the other, which naturally resulted in the socio-economic and political transformation of the Indian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or breakdown . During this process of progress and growth, the judicial system did receive encouragements and inspirations from foreign doctrines/notions and homegrown norms/practices, both in terms of organizing courts\’ structure, hierarchy, jurisdiction and adopting trial procedures/practices. Consequently, the present judicial system is not a completely foreign transplant, as is commonly assumed, but has attained a native flavor and national color. And while the system may not fully suit the prodigy of our people or meet the local conditions, its continued application and practice has made it comprehensible to the common man. The very fact that increasing number of people are resorting to the courts for the resolution of their conflicts/disputes, indicates that the system enjoys a degree of legitimacy and acceptance . The thesis is anchored on the research questions: What is affecting the dispensation of justice on the protection of fundamental human rights in Pakistan? What are the causes of delays and backlogs? 1.2 Research Aims and Objectives “Justice delayed is justice denied”. No society can exist without justice. And justice is conveyed to the people by a strong, feasible judiciary. Judiciary, being one of the significant structures of the state, plays important role in the solidity of society, as it provides quick respite to the public. But when justice is delayed, the letdown of judiciary starts. As a consequence, society drops into disorder. In case of Pakistan, this also holds true. Judiciary cannot deliver justice expeditiously to the people . The purpose of this thesis is to focus on the delay and backlogs in the judicial system of Pakistan, which results in the deferrals of fundamental human rights. Also what causes the delays, despite of various law commissions/committees constituted by the government in order to develop ways and means to meet the challenge of delayed justice? The topic “Challenge of Delayed Justice” is not a new one but has endured a subject of discussion and negotiation for well-known Jurists, Scholars and various Law Commissions/Committees established by the Government in order to change ways and means to meet the challenge of delayed justice . Though, the anticipated results could not be accomplished. Since 1956, consecutive governments have come up with a large number of Commissions and Committees on judicial reforms, the details of which are as follows :- • Commission on Marriage and Family Laws, 1956; • Law Restructuring Commission, 1958; • Law Reform Commission, 1967; • High Powered Law Reform Committee, 1974; • Law Committee for Recommending Measures for Speedy Discarding of Civil Litigation, 1978; • Secretaries’ Committee set up by the President to Examine the Recommendations of the Law Committee set up for Recommending Measures for Speedy Disposal of Civil Litigation, 1979; • Committee to Formulate Concrete Proposals for Simplifying the Present Legal Procedure In 1981, the government set up a perpetual Pakistan Law Commission (PLC). The Pakistan Law Commission has been issuing judicial figures and the Pakistan Law Digest (PLD), but it has not been very definite in shifting the nature of understanding of justice. Some of the commendations of these commissions relating to the Family Laws Decree, the formation of the Federal Judicial Academy, the Pakistan Law Commission and parting of the executive from the judiciary have been applied after a substantial delay. Substantive issues about day-to-day dispensation of justice, such as those concerning court facilities, structures, salaries of the judges, changes in procedure serving, making of witnesses, developments in examination and trial of criminal cases, implementation of rules and codes to cut down on delay and protracted inaction and prison improvements have not been implemented despite their repeated enunciation in reports . Members of civil society have also come up with thoughts for judicial reform. One such idea was to restore the judiciary through developments in inducements, organizations, infrastructure and information . The examination points out that the government’s political will to modification needs to be absorbed in a manner that will lead to incentive of judicial officials through better incentives and employing a Federal Public Service Commission, better internal and external answerability and checking by introducing measures such as the experiment by jury system and selection of a parliamentary protection of citizen’s rights, changing infrastructural limits such as delivery of professional court clerks, calculation facilities, law interns, libraries and the easing of a better quality of decision-making through proper lawful instruction and training for judges which would require enhancements in law colleges’ prospectuses . 1.3 Civil and Criminal Justice in Pakistan There is no doubt that delay in justice is not only a dare but stances a thoughtful hazard to the civil and criminal justice system in Pakistan. In spite of the fact that delay is a worldwide occurrence but in Pakistan, the place has become startling. The Pakistan Law Commission has taken knowledge of the subject and detected that “the civil and criminal justice system in Pakistan is challenged today with stern predicaments of irregular postponements . Delay in lawsuit of civil and criminal cases has become lingering and familiar. The phenomenon is not limited to Pakistan; it is rather old and universal. It is intrinsic in every judicial system which accurately pickets against any injustice being done to an individual, in a civil argument or a criminal trial. A dominant code of the criminal justice system is that a suspect is chastised only after his fault is evidenced beyond rational uncertainty. Similarly, justice stresses, that in a trial of a civil case, the argument must be definite and firmly in accordance with law and on the values of equity, justice and fair trial . Such universally documented and time-tested principles are in accord with the commands of Islam as the Holy Quran orders that Muslims must avoid unfairness, coercion, and suppression” . In Pakistan, one stern disadvantage of the management of justice is, delay. Delays always befall in the removal of civil and criminal cases. It is usual for an ordinary civil suit to dawdle on for as long as two decades, and on the conclusion of the trial, possibly additional half a decade passes by in the implementation of the verdict. In criminal cases also, the situation is quite gloomy. Rare delays occur in the discarding of cases by the courts . An example of uncommon delays is established by the fact that, conferring to a rough number, presently more than two-thirds of the jail prisoners includes of under-trial convicts. Such phenomenon corrodes the trust of the people and their sureness in the management of justice. Delays in the settlement of civil disputes, further prompt hindrance to the litigant community, also obstruct the socio-economic development of the society. It aids as a deterrent to foreign investment in our economy and disturbs our trade relations with foreign governments/multi-national companies . UN guideline for Prosecution and Prosecutors Qualifications, selection and training 1. “Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”. 2. States shall ensure that: (a) “Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”; (b) “Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law” . Status and conditions of service Prosecutors, as vital agents of the management of justice, shall at all times uphold the honour and dignity of their profession. States shall safeguard that prosecutors are able to do their professional functions without pressure, interference, annoyance, inappropriate intrusion or baseless exposure to civil, penal or other liability. Prosecutors and their families shall be substantially protected by the authorities when their personal safety is endangered as a result of the discharge of prosecutorial functions. Rational conditions of service of prosecutors, satisfactory compensation and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations. Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures . 1.4 Cause of Delays and Backlogs The reasons of backlog and delays are varied and thoughtful, rising due to issues both inside and outside courts, and legal/procedural gaps/lacunae. Justice delayed is, certainly, justice denied. Therefore, it has always been the main distress of civilized societies to speak the issue of delayed justice with an understanding to find ways and means of eliminating defect/lacks in the management of justice. It would be incorrect to accept that the delinquent of backlog/delays has been totally ignored in the past . It has been acknowledged by the government from time to time. Numerous Law Reform Commissions and Committees were established with an opinion to inspect/analyze the reasons of delay as well as to propose suitable actions for improvement. Such Commissions/Committees approved out a thorough inspection of the procedural laws and rules and recommended suitable actions for improvement thereof. Some such commendations were acknowledged by the Government and applied through amendments in laws/rules. The Honorable Supreme Court and High Courts have always been studying their particular rules of procedure so as to safeguard quick and reasonable disposal of civil and criminal cases. From time to time, the High Courts have issued managerial directions to the subservient courts for prompt disposal of cases. The reform of procedural law, though, has been a continuous and interminable procedure. Laws need to be studied and transformed in keeping with the shifting times so as to manage with the developing certainties. The speedy disposal of cases is certainly a creditable objective. Though, it is not an end in itself; it is only a means to an end. That end being the facility of quick and reasonable justice. It is undeniably not delay per se which is offensive but an irrational and indefensible delay which needs to be checked. The necessities of justice demand that adequate time and passable chances should be made accessible to the complainant parties and defendant persons to state their cases and put across their defence before the court of law. In the process delays may happen, but it would be overlooked if it is in the concern of a just and fair disposal of the case. On the contrary, the propensity to hurry disposal of cases must be checked if it is likely to result in an unfair, partial or random order or result . The query of delayed justice has been inspected by numerous Commissions and Committees and references were made at different points of time but no fundamental change was suggested in the current judicial system. These endorsements can be abridged as follows:- i) Suitable alteration in the applicable laws. ii) Upsurge in the number of Judicial Officers. iii) Supplies of acceptable number of court-rooms and proper lodging to Judicial Officers. iv) Upgrading into the working of examination and trial agencies. v) Training services to Judicial Officers. vi) Development in Procedure of serving Agency. vii) Improvement in the retirement age of Judges. viii) Proposal of Challan in time, the examination branch of the Police should be reinforced, the number of Forensic Science Laboratories be amplified and the Court should take thoughtful notice of carelessness or excessive delay/default in the time of suggestion of Challan. ix) Recurrent suspension of cases should be evaded. x) Junction of the civil and criminal purposes at the level of District and Sessions Judges. xi) Systematic preparations of managements and control by the High Court over the working of secondary courts. The cases of exploitation, disorganization and in proficiency must be taken notice of and suitable punishments conferred . Delays in the dispensation of justice have become unqualifiedly bad. This system of uneven justice is not new and certainly not limited to FATA alone. In Punjab, a punchayat authorized the gang rape of a woman as a penalty for a crime supposedly committed by her brother while in Sui a female doctor who stated being raped was herself professed a Kari by her in-laws and henceforth accountable to be killed . Such oppressive and brutal systems of decree are found most commonly in the rustic vicinity where people often need the defensive arm of the law and pledge of justice, both of which are non-existent. A great level of illiteracy, a retrograde and medieval approach and the occurrence of misogynistic views among a large section of the people further multiply the problem. Also if education and applying respect for the law, the government has to safeguard the justice system that spreads rural zones so that those who live there are not left at the pity of panchayats, jirgas or ‘peace committees’. Also, as an alternative of substitute as an assistant in such transgressions, it would be better if official authorities depress all form of random and swift justice anywhere in the country . Although deliberating the question of delayed justice the essential question rises qua disintegration of the police system in place and its total incapability to retort to crimes connecting issues such as tribal and feudal pressures and domination of the informally and economically feebler sections of society, which include women. (Yes, just to give few examples of rural justice system) A woman exposed by a tribal court to gang-rape or a couple murdered as karo-kari or a plow compulsorily displaced from his land by an influential owner or a government agency have the chances loaded against them from the start. The patwari-police-feudal lords’ alliance remains to be a crippling story of rural life. In many cases, it may be difficult for a victim to risk out of his or her house to lodge a report with the police. Where access is conceivable, the victim comes up against the wall of police triviality and venality. The force has been so tarnished and daunted by continuous burden from the state mechanism, from governmentally important people and from local tribal groups to evade the law that it has mainly forgotten its accountability to the people . It is ill-fated that the magistracy and the lower judiciary are vulnerable to the same weights. It is worth remembering that it was a suo motu Supreme Court notice that caused in the registering of a report in the Mukhtaran Mai case. In this background, how the law is to be understood in a social setting boons a major predicament. Should a Judge strictly follow to the opinions of legal procedures, as he is predictable to do, or look at the whole situations surrounding an event? This is a recurrent quandary that has confronted the judiciary in every country down the ages. It has been informal to resolve in countries, where the rule of law, constitutional procedures and respect for democracy has been resolutely established; also where feudalism and the feudal attitude have been laid to rest. Regrettably, in our country, even the government is subjugated by feudal rudiments. There can be little hope of social justice unless the entire system is democratized. The state itself has to become kinder and less tyrannical. Justice, like any other purpose of state, cannot function in a void. Temporarily, the people will remain to look up to the judiciary to present an element of social justice in the system, and to act as a force for reorganization and progress . 1.5 Insufficient Number of Judges Another reason backing the delayed justice is that adequate numbers of Judges do not exist at numerous levels to manage with the uncountable number of cases before the Courts. This needs to be earnestly tackled. For years the subject has been preserved as only a talking point with no thoughtful steps taken to address the problem .Though, it must not be elapsed that although this may be partially precise neither is the condition ready for it, nor can we find the appropriate Judges to harvest the wanted outcomes. You do not hire just a Judge but form a Court and it is neither a low-cost exercise nor so simple to do. A Court to work competently needs well-organized and knowledgeable staff and also syndicates a number of other issues, fading which it will prove counterproductive. Regrettably, the idea of adding of more Judges to the present strength has been highlighted so much and so often by so many well-known people that now, it is being painstaking as the only cure of the disorder regardless of the hard reasons involved. If disorganization is added to incompetence, it will not bring efficiency: it will instead simply increase it. It may not be out of place to comment here that the backlog is not much pretentious but exploitation has amplified respectively, or much more, and the excellence and efficiency have decreased similarly . Past is full with examples of cases that have either never been decided or where the government has miscarried to implement the court’s choices. These aspects have all added to the public’s poor insight of the system and also clarify why so many turn to jirgas and panchayats to resolve disputes, notwithstanding bans on these establishments . The government has to work in partnership with Judges and lawyers to reinforce the judiciary so that it is seen as a self-governing body that brings justice promptly. The ADB sponsored “Access to Justice” program, which began in 1999, and was exposed as a technique to safeguard speedy justice, does not seem to have met with much achievement. It has been problematic to determine what, if any, of its suggestions were put in place and what were the results of those applied. If applied in letter and spirit, the program could certainly make the release of justice speedy . The wanted outcomes cannot be attained without making radical changes and improvements in the lawmaking, judicial and police departments to make the dispensation of justice swift. This is the only way which can reinstate the sureness of people in the judicial system which confidence has been corroding over the years for a number of reasons . A reasonable, easily available and well-organized judicial system will dishearten many from resorting to the similar justice system, predominant particularly in the rural area in the form of Jirga or Panchayat, which in many cases have been instruments of failure of justice. The new Police Act also needs upgrading and the imprint that everything is well at the gross root level is not right. Also that, high payment, improved working and living settings for the police and the lower judiciary needs to be applied. The physical look and feel of the police stations and courts also need to be enhanced. These are the parts which must be dealt with on an urgency basis if speedy and low-cost justice is to be made accessible to the people. The judicial reform program must be a continuing exercise across the country and economic possessions should not be a deterrent in this respect. The race for money attached with the easy probabilities of getting provisional orders from the Courts on the basis of falsification of facts and false insistences and the known delay in disposal of cases, has desirous a substantial share of the public to take up lawsuit as an occupation and advantage from the rights and properties of others. The outcome is that the number of cases is piling up every year, totaling to the preceding intolerable delay in their disposal. The current backlog of the cases and the unceasing adding to it is thus a straight result of not honest trial but of false and fake lawsuit. The backing for such lawsuit is the delay in disposal of cases. The procedure is therefore; not only grudging the honest distressed persons from relishing their properties or getting their cases disposed of prompt but is burrowing the ethical energy of the people . In other words, the predominant condition is not only inspiring but increasing what Islam wants to eliminate. Islam asserts on justice. The oddest facet of this condition is that there is in this country, not even a single person who would openly document this sad state of affairs to go on but still it is prospering. In any event, the important question is how to get rid of it and present swift and pure justice? It is certainly, a tremendously odd and complex problem but, as noted above, the failure for any reason to contend with the problem and to overwhelm it, is providing additional attractions for more dishonest people to arrive the field and reap attractive produces. One of the preparations being very deafeningly recommended now all around, mainly, by the members of judiciary and the legal profession, is to upsurge the number of Judges . 1.6 Criminal law Drawbacks Our criminal laws have the subsequent drawbacks due to which the anticipated admiration for law and swift dispensation of justice cannot be attained:- (i) Absenteeism of politico-religious permission of the punitive, local and special laws as well as nonexistence of their mass understanding by people; (ii) “Justice delayed is justice denied” is a basic principle of Islamic jurisprudence. It is hitherto to be understood in Pakistan. Faster, inexpensive, general and better-administered justice is the demand of the people of Pakistan; (iii) Deficiency of specificity of multi-dimensional laws conferring to our local needs on balanced lines by impartial and similar supplies of many laws functioned by parallel justice opportunities also confuses people; (iv) Non-adaptation of much wanted amalgamation and interpretation of laws for prevalent understanding and no availability of criminal codes in legal Urdu is another obstacle; (v) Unreasonable penal authorizations as in contradiction of set patterns of Islamic penology also puzzle people . The criminal justice system present in Pakistan was relocated by the British during their colonial rule in the last century and a half which is now the chief reason of abandonment in compensation of public complaints . There is a dire necessity of development of the lot of our judiciary to make it more self-governing with better service circumstances to deliver justice to the masses rendering to the universal values of inexpensive and quick settlement of victim’s complaints. The trial wing also desires instant strengthening after its parting from the Police with much more wired staff, better controlled organization of tasks, proper offices and housing-cum-transport facilities. The public based justice, which has a antiquity of thousands of years of our better being in this sub-continent, needs reconsidering and the system of conciliation courts needs strengthening. The swift clearance of cases with conviction of fair justice, suitable punishments to real offenders and public reaction for perfect social defence should be our nationwide precedence to build-up a crimeless Islamic state in Pakistan .  

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Barrister Mujahid Malik

A government has three parts: the legislature, the executive and the judiciary. The judiciary is one of the most important pillars of democracy, but it also faces many challenges that affect its functioning and credibility. 

Some of the major challenges of the judiciary in Pakistan are:

• Delayed justice system and backlog of cases: The judiciary is overburdened with a huge number of pending cases, which leads to delays in delivering justice and affects the quality of judgments. According to the National Judicial Data Grid, as of December 2022, there were millions of cases pending in various courts across the country. This backlog includes inadequate judges and court staff, frequent adjournments, complex and lengthy procedures, lack of alternative dispute resolution mechanisms, and poor case management systems.
• Corruption and political interference: The judiciary is also vulnerable to corruption and political interference, which undermines its independence and integrity. There have been allegations of judicial misconduct, nepotism, favoritism, bribery, and influence-peddling in some cases. The appointment and transfer of judges, the allocation of cases, and the oversight of judicial conduct are also areas where political interference and lack of transparency can compromise the judicial process.
• Insufficient resources and infrastructure: The judiciary suffers from a lack of adequate resources and infrastructure, which affects its efficiency and accessibility. There is a shortage of judges, courtrooms, staff, and funds to meet the growing demand for justice. The judge-population ratio in Pakistan is one of the lowest in the world, with only 19 judges per million people, compared to 107 in the US and 51 in the UK. The infrastructure of courts is also poor, with many courts lacking basic facilities such as computers, internet, electricity, and sanitation.
• Shortage of legal professionals: The judiciary also faces a shortage of qualified and competent legal professionals, such as lawyers, prosecutors, and paralegals, who can provide effective legal services and representation to the litigants. There is a need to improve the quality of legal education, training, and regulation to ensure that legal professionals are well-equipped with the skills and knowledge required for the changing legal landscape.
• Complex and confusing laws and procedural complexities: The judiciary also has to deal with the challenges of complex and confusing laws and procedural complexities, which create ambiguity and uncertainty in the interpretation and application of the law. Many laws need to be updated, consistent, or contradictory, and reflect the current social and economic realities. The procedural laws are also cumbersome, rigid, and technical, and do not facilitate the speedy and fair resolution of disputes.

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To reform the judiciary in Pakistan, some of the possible measures are:

• Reduce case backlogs: To reduce the case backlogs, the judiciary needs to increase the number and capacity of judges and court staff, streamline the case flow management system, introduce alternative dispute resolution mechanisms, such as mediation and arbitration, limit the number and duration of adjournments, and enforce strict timelines for the disposal of cases.
• Improve access to justice: To improve access to justice, the judiciary needs to ensure that the courts are accessible, affordable, and responsive to the needs of the people, especially the poor, marginalized, and vulnerable groups. The judiciary also needs to provide legal aid and assistance, simplify the court procedures and language, establish mobile courts and legal awareness camps, and promote the use of local languages and customs in the administration of justice.
• Enhance judicial independence: To enhance judicial independence, the judiciary needs to ensure that the judges are appointed and transferred on the basis of merit, competence, and integrity, and that they are free from any external pressure or influence. The judiciary also needs to establish a transparent and accountable mechanism for overseeing and disciplining judicial conduct, and protect the judges from any threats or harassment.
• Strengthen accountability and integrity: To strengthen accountability and integrity, the judiciary needs to adopt and enforce a code of ethics and conduct for the judges and court staff, and establish a system of performance evaluation and feedback. The judiciary also needs to ensure that the court proceedings and decisions are open, fair, and impartial, and that they are subject to public scrutiny and review.
• Invest in technology: To invest in technology, the judiciary needs to upgrade the infrastructure and equipment of the courts, and introduce digital and online services, such as e-filing, e-payment, e-summons, e-notices, e-transcripts, e-judgments, and e-courts. The judiciary also needs to develop a centralized and integrated database and information system, and use modern forensic and biometric tools for evidence collection and verification.
• Enhance training and development: To enhance training and development, the judiciary needs to provide regular and continuous training and education to the judges and court staff, and update their knowledge and skills on the latest legal developments and best practices. The judiciary also needs to foster a culture of learning and innovation, and encourage the exchange of ideas and experiences among the judicial officers and institutions.
• Promote public awareness and participation: To promote public awareness and participation, the judiciary needs to improve the communication and outreach of the courts, and inform the public about their rights and duties, and the services and facilities available to them. The judiciary also needs to engage with the civil society, media, academia, and other stakeholders, and solicit their feedback and suggestions for the improvement of the judicial system.
• Legislative reforms: To reform the laws and procedures, the judiciary needs to work with the legislature and the executive, and propose and support the amendments and revisions of the existing laws and procedures, and the enactment of new laws and procedures, that are in line with the constitutional principles and international standards, and that reflect the current social and economic realities.
• Reforming codified and procedural laws: To reform the codified and procedural laws, the judiciary needs to simplify and rationalize the laws and procedures, and eliminate the inconsistencies and contradictions among them. The judiciary also needs to harmonize the laws and procedures with the Islamic and customary laws, and ensure that they are compatible with the human rights and fundamental freedoms of the people.
• Developing witness and evidence standards: To develop the witness and evidence standards, the judiciary needs to ensure that the witnesses and evidence are reliable, credible, and relevant, and that they are properly recorded, preserved, and presented in the court. The judiciary also needs to protect the rights and interests of the witnesses and evidence providers, and provide them with adequate security and incentives.
• Revamping bar and bench relationships: To revamp the bar and bench relationships, the judiciary needs to foster a cordial and cooperative relationship with the lawyers and the bar associations, and respect their role and contribution in the administration of justice. The judiciary also needs to support the professional development and regulation of the lawyers and the bar associations, and address their grievances and demands.

Hence, it is critical to reform the judiciary in Pakistan for a functional justice system. The governance system can not become functional unless there is a functional judicial system in Pakistan. 

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WHY DO PEOPLE IN PAKISTAN AVOID SEEKING COURT REMEDIES? FAILURE OF PAKISTAN’S JUDICIARY?

“The moral arc of the universe is long, but it bends toward justice” [1] . (Theodore Parker)

Rule of law demands habitual obedience to the law and what the law seeks to promote is Justice. When there is a lack of legislation for curbing social evils, or even if there is, but the same is ineffective and inefficient, then justice cannot be obtained. When the justice system is synonymous with ´Might is Right ‘or when the legal process is lengthy, unavailable, or full of interruptions. Then justice cannot be obtained. To maintain rule of law in a society laws must be in conformity with the needs of society. Outdated or irrelevant laws must be repealed and laws should be in accordance with modern-day norms.

Among all the three main organs of the State, under the constitution of 1973, an efficient judiciary is crucial to democracy, governance, security, and economic growth. An independent judiciary certifies that the Rule of Law is available to all citizens. But, unfortunately, the judiciary in Pakistan is full of flaws, and People in Pakistan are also exhausted with such a system and therefore are reluctant to avail court remedies.

This article will attempt to highlight the reasons for people´s mistrust and non-satisfaction with the prevailing judicial system in Pakistan. For this purpose, the essay will present the standing of Pakistan’s justice sector (scrutinized under international justice indicators), what are the deficiencies in our judicial system? What legal, economic, social, cultural, and political hurdles are causing a trust deficit among the people? This essay will also attempt to examine the measures that can be taken to improve the judicial system in Pakistan and this will be done by analysing the judicial system of the world’s top-ranked states.

The World Justice Project (WJP) measures rule of law performance in 128 countries is based on eight factors, which include; Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. [2]

Pakistan’s overall ranking in the rule of law index (RLI) for the year 2020 has dropped by one position as compared to the previous year (i.e. in 2019 Pakistan’s ranking was 117 and its total score was 0.39). In 2020 Pakistan secured 0.39 scores and is in 120th position. In the South Asia region, Pakistan is only ahead of Afghanistan. [3]

The Judicial system can be scrutinized on the basis; that whether it is accessible, affordable, effectively free of discrimination, free of corruption, free of improper government influence, free from unreasonable delays, timely adjudicated, and in civil justice whether ADR (Alternative Dispute Resolution) mechanisms are accessible, impartial and effective, and in criminal justice whether criminal investigation and correctional justice system is effective and whether it reduced criminal behaviour in society and whether due process of law is being followed and right of accused has been safeguarded. [4]

Pakistan remained in the 118th position in the factor ranking of civil justice for 2020. In 2019 the country was on the same position. While in the factor ranking of criminal justice for the year 2020 Pakistan has fallen six-position down to 98th place, the country was ranked on 92nd position in 2019. [5]

Most people in Pakistan are unwilling to bring their legal matters before the courts; this is due to the number of defects in the existing judicial system. Following are some of the social, legal, economic and political obstacles to obtaining justice.

Systematic Corruption has long been the biggest problem in Pakistan like malignant cancer. Due to such deep-rooted traditions of corruption, Pakistan dropped four spots over last year and has ranked 124 out of 180 countries on the 2020 corruption perception index.

The Law Reform Commissions formed by the governments of Pakistan revealed:

“Police station is the main centre of corrupt activities… A case is not registered or an F.I.R. is not accepted nor is sufficient interest shown in the investigation unless the complainant gives a handsome gratification to the Officer-in-Charge of the police stations.” [6]

¨Corruption among the subordinate officials and process-serving staff as well as among the investigating staff is rampant with the result that no action is taken by them unless the parties involved approach them and tender some extra-legal consideration…, ‘papers move only on golden or silver wheels.” [7]

The Culture of Nepotism is another critical issue, parties taking advantage of law houses of relatives of serving judges. While, in India in terms of Rule 6 of The Advocate Act, 1961, ¨No relatives of a judge can practice where the judge is serving¨. Such nepotism also prevails at the time of appointment and extension of judges by turning a blind eye to the ´competence and merit’. One of such incident which was highly criticized by Punjab Bar Association is the approval of names for the appointment of additional judges of the Lahore High Court for a period of 1 year by the JCP ( judicial Council of Pakistan), which was presided by the Supreme Court Chief Justice Iftikhar Muhamamd Chaudhary. It was alleged that candidates with barely any standing at the bar but with strong links with sitting judges have been recommended for elevation. [8]

Another recent example of the same is the elevation of Justice Mazhar Ali as the judge of the Supreme Court and the placement of Ahmed Ali Sheikh, Chief Justice Sindh High Court, on an ad-hoc basis as judge of the Supreme Court, thus, putting an end to the seniority principle.

Another barrier is people’s trust towards those systems which are running parallel to formal judiciary like panchayat, Jirga, etc. This is because such informal courts take less time and are more conveniently located and people are more familiar to understand the nature of the work of informal courts. In contrast, formal courts are located in remote areas and there are too many complexities in court procedures which lead people to renounce going to court. A World Bank ‘Enterprise Survey’ reported that 38 percent of Pakistani firms find the court system a major constraint in doing business in comparison to 14 percent in South Asia as a whole.

Lord Woolf (who worked to introduce reforms that may curtail the cost and time courts spent on civil proceedings) identified in his report that the three critical issues confronted by the civil justice system at the time were “costs, delays, and complexity”.

The World Bank report published in 2018 said that “on average, it takes 1,071 days to settle a commercial dispute in court. Then the case can go to the appeal stage first in a High Court and then in the Supreme Court. It is not unusual for a case to take more than a dozen years to be decided. This is one of the main reasons why Pakistan ranks 156th on the World Bank’s Enforcing Contracts Index”. [9]

An example of the acquittal of the Mazhar Hussain Case exhibits the dark side of our delayed justice system. The acquittal in 2016 of Mazhar Hussain, who had already died in prison two years [10] earlier and it took around 12 years from the day he was initially awarded the death penalty.

According to the report (during the period from 1-1-2021 to 31-5-2021) of the Law and Justice Commission of Pakistan the statement of cases Pending, Institution, and Disposal in the Superior Courts and District Judiciary of Pakistan, out of 3852796 cases pending before the courts 1705983 have been disposed of, which is only 44% of the total cases. [11]

The most frequent cause of such delay is ‘adjournment’; which is due to the nonappearance of witnesses or the counsels of parties or sometimes it is because judges are on leave, in such situations the matter is to be heard by an alternate judge. However, this process is fraught with confusion, and many times results in an adjournment by the alternate judge. One of the main issues leading to slow case disposal is the shortage of judges and lack of judicial resources. [12]

Another mishap with our social system is the high illiteracy rate. As a result of which people are unaware and therefore unable to recognize their problem to be legal in nature. According to the WJP report, 82% of people experienced a legal problem in the past two years, out of which 66% of people were aware that where to get advice but only 27% of people got access to help. [13]

People in Pakistan also avoid reaching out to the courts due to their weak social and economic positions. There are several traditional bars in the name of so-called modesty, reputation, family honour, and the concept that private matters must be resolved privately. It happens especially when the matter is related to females. Misogynist and biased attitudes of state institutions such as police, judiciary, and society at large mostly blame the victims. Many cases go unreported, and many of the reported cases go unprosecuted. In the 2019 Women, Peace and Security Index, Pakistan ranked 164 out of 167 countries, only above Syria, Afghanistan, and Yemen, and the worst among nine South Asian countries.

According to the World Justice Project Report 2019, 82% of people faced legal problems in Pakistan, 27% got access to help and 23% of matters were resolved, this is due to the health, financial, and interpersonal hardships they faced.

The Unending Cycle of poverty and an expensive justice system urges people to quit their struggles for justice. Another side of the system is full of the arbitrariness of lawyers as they charge high fees, this is also due to the low income of lawyers, or if they take small amounts then they deliberately prolong the case to collect a small amount for each hearing. Huge economic misbalance between the parties also creates hindrances, Shahzeb Murder Case is a clear example.

A psychological barrier among the people is ´yawning cynicism´ on the true motives of judicial reforms. For instance, Chief Justice of Pakistan Supreme Court Asif Saeed Khosa’s concept of model courts has been called a “silent revolution” in the judicial history of the country by legal experts. As the criminal trials, especially of murder and narcotics, are disposed of within days instead of years. But, surprisingly, the speedy trials by model courts have come under criticism from the lawyers’ fraternity, who labelled them as “justice rushed, justice crushed”. [14] In the same manner, steps taken for the issuance of succession certificates by NADRA and police reforms in Sindh and Islamabad have also been highly criticized by the lawyers.

The deplorable side of our judiciary is that our legal system is not for curtailing the social evils. The Justice System is flooded with legal practitioners who are experts in ´circumventing’ the law which means ¨there is compliance with the letters of the law not with the spirit and purpose of law¨. There is also a lack of legislation concerning the modern-day requirements, and outdated laws with poor evidentiary standards cause a trust deficit among the public, towards the judiciary. The case in point is the ¨Mukhtara Mai case¨ wherein in 2005, the Lahore High Court cited “insufficient evidence” and subsequently acquitted 5 out of the 6 convicted rapists, while commuting the punishment of the sixth man to life imprisonment. Mai and the government appealed this decision, leading the Supreme Court of Pakistan to suspend the acquittal and hold hearings for an appeal, 15 In 2011, the Supreme Court also acquitted the accused.

Another example is of Malalaś Case when the accused were acquitted on benefits of doubt or lack of evidence The Regional Deputy Police Chief, Azad Khan, was quoted in the “New York Times” saying that the “men were released for lack of evidence” chalking the verdict up to a failure of Pakistan’s Judicial system (8 out of 10 accused men in ´2012 attack on Malala were acquitted).

The Human Rights Watch Report mentioned the reasons why people have no hope of getting justice in this crooked system and mentioned the police abuses and the culture of impunity that exists in Pakistan. The report mentioned custodial torture, extrajudicial executions, and other serious human rights violations including the refusal to register complaints (known as First Information Reports or FIRs), by the police in Pakistan. [15]

Culture of Impunity; Police involved in serious abuses are rarely brought to justice. For example, Syed Alam was killed by the police in 2015 to escape from the accountability for corruption. According to his father, Umar Daraz. Alam was initially arrested on the request of some people that owed him money and wanted to avoid repayment. Daraz said that the police demanded bribes to release Alam and badly beat him in custody. Although the family borrowed and sold jewelry to pay the police, the police still filed false charges against them. Once Alam was released on bail, the family filed a complaint against the police before the anti-corruption department, after which the officers named in the complaint threatened the family. Daraz told Human Rights Watch: “The police officers started harassing and threatening me, demanding to take back the complaint, otherwise they would kill me and my son.” Shortly thereafter, Alam disappeared. After four years, on November 21, 2015, his body was recovered from a garbage dump with clear signs of torture all over his body.

The crucial stumbling block to developing trust among people toward the judiciary is the politicization and despotism of the judiciary. Judge Arshad Malik’s story exposed the immoral state of our judiciary and its apparent vulnerability to manipulation. In his statement, the judge confesses to being blackmailed and claims that the Sharif family tried to bribe him. Iftikhar Chaudry lawyer’s movement and Saqib Nisarś interference in policy-making matters are also examples of such politicization.

Bench and Barś political tussle also created the worst image of the judiciary in the eyes of the public. It can be seen when Chief Justice of Lahore High Court Mansoor Ali Shah focused on the internal reformation of the judiciary by making the appointment of judges more efficient and less prone to nepotism that should be a catalyst for other courts in Pakistan. For this purpose, he demoted 30 judges from the bench who were accused of incompetence and introduced a transparent scrutinized process for appointment. [16] Surprisingly, Lahore Bar Council defended the accused and demanded Chief Justice Shahś resign. [17]

Last but not the least, the security of lawyers, judges, and witnesses is also endangered especially when they are involved in litigations against terrorist, extremist or influential groups. This creates hurdles in the way for victims to seek legal remedy through court. An explicit example of such a security threat is the ´Quetta Massacre´ i.e the Murder of Bilal Kasi, president of Baluchistan Bar council, by Jamat ul Ahrar, in August 2016. When his body was sent to a local hospital a suicide bomber targeted all lawyers, who had come to the hospital, regardless of what kind of cases they handled. [18] The same situation happens when the case is related to minority rights or alleged blasphemers.

Therefore, it is a need of the hour to revive our judicial system through people-friendly reforms in a way that it not only be available, accessible, and efficient but also furnish tailor-made reforms for specific groups of society. To conclude, we will shed light on some of the unique and ideal reforms adopted by the judiciaries of those states which stood on top (Denmark, Norway, Finland, and Netherland) under the WJP Rule of Law Index rankings in 2020.

The Netherland’s ´Secondary Sites System works on the principle of ´access to justice´ by establishing secondary locations in each court district and each court of appeal. In these local sites a wide range of cases are dealt with. The Parliament managed to ensure most common cases could be handled in local sites easily accessible to citizens. This is very similar to the French system of ‘audiences foraines´ (public hearing) which aims at resolving disputes related to everyday life, including family matters. [19]

More people in Denmark mistrust their Parliament but most of them trust their judicial system. They continue to innovate their judiciary to better meet its citizenś needs. Since 2009, Denmark has adopted several steps of the e-justice system. For instance, land registration has become fully digitalized and automatic, this lessens the burden on the courts and also lessens the disputes related to lands. ´Electronic web portal´, through this portal everything is centralized and electronically available. Therefore, a large number of simple cases in this area will be fully automatically treated without resorting to a “real” court. This example of “electronic case processing” saves time and money both. [20]

France, which ranked in 20th position under the WJP Rule of Law Index 2020, introduced a ´Contact Video Justice´ (CVJ) system, these are administrative justice counters, equipped with internet access that permits citizens to view the information directly on the screen and receive documents and may also talk with a legal practitioner with a webcam. The ´Users´ counters are installed in access points (like city halls) and they are connected to the ´expert´ counters located in court. [21]

France’s ´New Generation of House of Justice and Law´ is an alternative legal structure which existed in urban areas, and extended to remote rural areas to avoid judicial deserts. They deal with daily/minor crimes and small civil matters and also offer ADR (Alternative Dispute Resolution) methods, they can also hold public hearings and are generally equipped with video conference devices. [22]

According to the World’s Prison Brief report, “Norway’s prisons have the lowest recidivism rates globally”. [23]

Finland and Norway both are shifting the focus of their criminal justice system from ´Punishment´ to ´Rehabilitation and Healing´. Their vision for the justice system is “Life inside shall resemble the life outside as much as possible” The principle tenet of Norwegian Correctional Service is ¨If you treat someone as a Monster, they’ll behave like a Monster.

In Finland and Norway prison is the place of last option, House arrest is most common. They focus on the ´Root Cause of Crime´ they believe prison will not solve their social problems only social services can. In Norway, they do not imprison their youth (kids under 18 years of age), because they don’t want to disturb their education, cut them off from their loved ones and expose them to worse pain and violence when their brains are still developing. Prisons exist to rehabilitate people.

Netherland “Register of Expert”; to enhance the accurate working of the court, judicial bodies in the Netherlands rely on the Register of Court Experts (NRGD). A judge, a lawyer, or the Public Prosecution Service, for instance, can consult this register. The NRGD lists experts in areas such as DNA testing, forensic psychology, psychiatry, or handwriting analysis.

 Above all, to fully empower the judiciary there must be a proper allocation of budget for judicial institutions. Judiciary as a public service body receives funds from public funds, therefore, there must be transparency in the use of such funds to gain public trust. Hence, the model of ‘Performance-based Budget’ reforms should be introduced which can stimulate the performance and efficiency of the judiciary, as according to OECD (Organization for Economic Cooperation and Development):

“From the citizens’ point of view, the system can enhance transparency and accountability and from the government point of view, it may help to make budgeting decisions underpinned by performance data, to compare departments, and to weigh priorities”. [24]

[1] “Ten sermons of Religion of Justice and the Conscience, 1853” by Theodore Parker,

http://quoteinvestigator,com/2012/11/15/arc-of-universe/

[2] World Justice Project Report, Rule of Law Index, 2020,

https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020

[3] World Justice Project 2020: Pakistan slips down in absence of corruption, rule of law index, The News, November 1 st , 2020, https://www.thenews.com.pk/print/737464-world-justice-project-2020-pakistan-slips-down-in-absence-of-corruption-rule-of-l aw-index

[4] Conceptual Framework of the WJP, Rule of Law Index, 2020.

[5] World Justice Project 2020: Pakistan slips down in absence of corruption, rule of law index, The News, November 1 st , 2020, https://www.thenews.com.pk/print/737464-world-justice-project-2020-pakistan-slips-down-in-absence-of-corruption-rule-of-l aw-index

[6] Research Paper, by M. Azam Chawdry, “Corruption in Pakistani Courts in the Light of Local Cultural Context” (reference quoted from; Law Reform Commission 1967-70, Page no. 414)

[7] Research Paper, by M. Azam Chawdry, “Corruption in Pakistani Courts in the Light of Local Cultural Context” (reference quoted from; Law Reform Commission 1967-70, Page no. 414-415)

[8] Bar accuses CJ-led panel of nepotism in judges’ selection, March 15, 2012, The News, https://nation.com.pk/15-Mar-2012/bar-accuses-cj-led-panel-of-nepotism-in-judges-selection

[9] Moiz Ur Rehman, “The urgent need for Judicial Reforms in Pakistan”, Business Recorder, May 25,2020, https://www.brecorder.com/news/594799

[10] Barrister Taimur Malik, “In Pakistan, justice is the title of an important person. Not an ideal of hope and fairness”, September 05, 2018, The Dawn, https://www.dawn.com/news/1431101

[11] Statement of cases Pending, Institution and Disposal during the period from 1-1-2021 to 31-5-2021 in the Superior Courts and District Judiciary of Pakistan, http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/courts.pdf

[12] Barrister Taimur Malik, “In Pakistan, justice is the title of an important person. Not an ideal of hope and fairness”, September 05, 2018, The Dawn, https://www.dawn.com/news/1431101

[13] World Justice Project – Access to Justice 2019, 2017 General Population Poll survey module on legal needs and access to justice, https://worldjusticeproject.org/sites/default/files/documents/Access-to-Justice-2019-Pakistan.pdf 13 Tahmina Rashid, “Crimes against women in Pakistan”, December 03, 2019, Asia and Pacific Policy Society, https://www.policyforum.net/crimes-against-women-in-pakistan/

[14] Asif Ullah Khan, “Model Courts in Pakistan: A silent Revolution”, July 07, 2019, India Legal, https://www.indialegallive.com/world-news/global-trends-news/model-courts-in-pakistan-a-silent-revolution/ 15 “Pakistan rape Acquittals rejected”, June 28, 2005, BBC News, http://news.bbc.co.uk/2/hi/south_asia/4629457.stm 16 Shamil Shams: Interview, Mukhtaran Mai: ‘More Pakistani women are demanding their rights now’, DW News, https://www.dw.com/en/mukhtaran-mai-more-pakistani-women-are-demanding-their-rights-now/a-48049179 17 Catherine Powell, ”Flawed and Unequal Justice in Pakistan”, June 17, 2015, Council on Foreign Relation, https://www.cfr.org/blog/flawed-and-unequal-justice-pakistan-0

[15] “This Crooked System: Police Abuse and Reform in Pakistan”, September 26, 2016, Human Rights Watch, https://www.hrw.org/report/2016/09/27/crooked-system/police-abuse-and-reform-pakistan 19 Ibid.

[16] “Lawyers move SC against Lahore High Court chief justice”, August 10, 2017, Dawn News, https://www.dawn.com/news/1350724

[17] Wajiha Ahmed Sheikh, ¨Bar asks Chief Justice to Resign”, October 16, 2016, Dawn, http://www.dawn.com/news/1290326

[18] Pakistan hospital bomb attack kills dozens in Quetta, August 08, 2016, BBC News, https://www.bbc.com/news/world-asia-37007661

[19] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 50,

https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a

[20] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 52,

[21] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 53, https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a

[22] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 51,

[23] Systems of Crime and Castigation: A Reevaluation of the Punishment Bureaucracy, SIT Digital Collection, Independent Study

Project, 2019, Page no. 20, https://digitalcollections.sit.edu/cgi/viewcontent.cgi?article=4380&context=isp_collection 28 Alex M. Johnson, “What I Learned Touring Prisons in Finland and Norway”, Stories – The California Wellness Foundation, https://www.calwellness.org/stories/lessons-prisons-finland-norway/ 29 Ibid.

[24] OECD 2017 Public Governance Directorate Budgeting and Performance in the European Union – A review in the context of EU Budget Focused on Results

Author: Izza Rizvi

The writer is a human rights lawyer and gold medalist LLB graduate. She serves as a legal advisor at the Legal Aid Society and has also interned at Courting The Law.

Very well researched and focused article.

• WHY DO PEOPLE IN PAKISTAN AVOID SEEKING COURT REMEDIES? FAILURE OF PAKISTAN’S JUDICIARY? - Courting The Law

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Assessing the Independence of Judiciary in Pakistan.

2019, Journal of Historical Research (JHR)

Judiciary is considered an important pillar of every political system. It always tried to ensure the rule of law and guarantees civil liberties and fundamental rights to the citizens. To perform these functions effectively, independence of judiciary must be ensured. Unfortunately, in Pakistan judiciary faced severe hurdles in its smooth functioning due to legal framework orders and provisional constitutional orders issued from time to time by military rulers. Resultantly independence of judiciary suffered severely. This paper is an attempt to assess the level of judicial independence in political system of Pakistan from 1947 to 1999. Historical and analytical approaches of research with secondary sources of data have been used to find the results.

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The Dynamics of Judicial Independence pp 125–219 Cite as

Judicial Independence in Pakistan

• Lorne Neudorf 2  
• First Online: 24 February 2017

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This chapter examines the legal principle of judicial independence in Pakistan in two stages. First, a brief analysis of select secondary sources, including academic commentary and the views of participants in Pakistan’s legal system, distills themes that are seen by observers as important to the meaning and practice of judicial independence in Pakistan. From this starting point, the study identifies and examines a number of primary legal sources related to the themes identified, including constitutional arrangements, legislation, and reported judicial decisions. These primary sources are used to construct a narrative of judicial independence in Pakistan from the time of its independence in 1947 to the first half of 2016. While the study draws on illustrative scholarship and commentary to identify themes, its focus is on the identification and analysis of primary legal sources that reflect institutional arrangements and shed light on the interactions between courts and other branches of government. The second stage of this study considers implications and lessons learned from the experience of judicial independence in Pakistan.

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See, e.g., Larkins ( 1996 ), p. 618. Although beyond the scope of this study focused on primary legal sources, there are a number of important historical and political works on Pakistan that provide additional detail in relation to the country’s present and past economic, political, and social context. See, e.g. , Wheeler ( 1970 ), Waseem ( 1989 ), Noman ( 1990 ), Shehab ( 1995 ), Kennedy ( 1996 ), Malik ( 1996 ), Shafqat ( 1997 ), Ahmed ( 1998 ), Ziring ( 1998 ), Akhtar ( 2000 ), Rizvi ( 2000 ), Desai and Ahsan ( 2005 ), Cloughley ( 2006 ), Kāẓmī ( 2009 ), Siddiqi ( 2012 ), Long ( 2015 ).

The division of time into these two periods is not based on a single event. Instead, the division is designed to facilitate a reflection on the overall developments after the first 50 years.

Pakistan’s population grew by more than 23 % over the most recent 10 years (from 153 million in 2005 to 189 million in 2015) while its per capita gross domestic product doubled during the same period ($714 in 2005 to $1429 in 2015): World Bank ( 2015 ). With a gross national income per capita of $14,400 in 2015, the World Bank classifies Pakistan as a lower middle income economy. All amounts in USD.

Talbot ( 2009 ), pp. 3–13, 50.

Abbasi ( 2012 ).

National Accountability Bureau ( 2002 ).

Islamic teaching also provides for an independent judiciary to determine disputes, see e.g., Cotran and Sherif ( 1999 ), Lau ( 2004 ), and Sherif and Brown ( 2003 ) who write that “the independence of the judiciary is a very well established principle in the Islamic Shari’a ”. This study focuses on the role of secular courts established on the English common law model. For an excellent overview of the use of precedent in Pakistan’s secular legal system see Munir ( 2014 ).

Jinnah’s ambition to establish an independent state as a homeland for India’s Muslims was initially opposed by other Indian Islamic parties who saw him as an advocate of the English legal system: Khan ( 2012 ), p. 291. Jinnah died 1 year into office.

Jinnah ( 1947 ).

The enactment of the Human Rights Act 1998, c. 42 incorporating the European Convention ( 1953 ) provides the English courts with the power to invalidate subordinate legislation or executive action on the basis of the Art. 6(1) guarantee of an independent and impartial tribunal. This power, to date, has been used sparingly by English courts: it does not defeat ‘dependent’ administrative decision-makers, such as government ministers exercising power under statute, nor has it radically altered the use of lay magistrates in England who enjoy none of the traditional protections of judicial independence such as guaranteed tenure, compensation, and administrative independence.

Khan ( 2004 ).

Khan ( 2016 ).

Newberg ( 1995 ).

Ibid , p. 11.

Ibid , pp. 2, 11.

Ibid , p. 5.

Ibid , pp. 12–13, Newberg writes that “[b]y allowing courts to operate, even if under stricture, the state has been the ultimate beneficiary of judicial largesse.”

Ibid , pp. 11–12.

Ibid , p. 6.

Ibid , p. 33.

Ibid , p. 13.

Ibid , pp. 4–5, 33.

Ibid , pp. 6–7, 13.

Ibid , pp. 5–6.

Ibid , pp. 248–250.

Ibid , p. 8.

Ibid , p. 250.

Lee ( 2010 ).

Ibid , p. 371.

Ibid , p. 372.

Ibid , p. 373.

Ibid , pp. 381–384; see the discussion of the judicial crisis below.

Ibid , pp. 386–387.

Constitution of Pakistan (1956), Constitution of Pakistan (1962).

Khan ( 2012 ), p. 8. For a discussion of the most recent amendment, see Newberg ( 2016 ).

Constitution (Nineteenth Amendment) Act, 2010, 1 (2011).

The Nineteenth Amendment to the Constitution made several changes to the judicial appointment process in accordance with a Supreme Court ruling: see discussion below.

Constitution (Twentieth Amendment) Act, 2012, 5.

Ibid , Statement of Objects and Reasons.

In the case where the amendment alters the ‘limits’ of a province, a two-thirds majority of the province’s assembly is also required: Art. 239(4).

Arts. 141–144 distribute legislative powers between the federal government and the provinces.

Art. 41 sets out the qualifications and election procedure for the President while Art. 44 sets out the term of office for the President. It appears that under Art. 44(2) a single individual may hold the office of President for more than two terms provided they are not consecutive.

Arts. 46, 48. Note that under Art. 48(1), the President may require the Cabinet or Prime Minister to reconsider its advice although the President must act in accordance with the reconsideration within a period of 10 days.

Arts. 232–237.

Arts. 91(1), 91(6).

Arts. 91(3)-91(5).

Arts. 58, 90(1). For a detailed analysis of a previous version of Article 58, which provided the power for the President to dissolve the National Assembly, see Siddique ( 2006 ).

Art. 101(1).

Officially styled the Federal Shariat Court.

Art. 175(2).

Art. 187(1).

Art. 187(2).

Arts. 175, 184, 185, 186.

See, e.g. , Ontario (Attorney General) v Canada (Attorney General) , [1912] AC 571, where the Privy Council upheld a legislated reference procedure to the Supreme Court of Canada.

Supreme Court Rules, SRO 1159(I)/80.

Art. 199(1).

Huq ( 2003 –2004), p. 26, the judicial appointment process is discussed further below.

Art. 203D(1).

Art. 203D(3).

Art. 203DD with the exception of converting an acquittal into a conviction.

Art. 203G. Despite the parallel system of Islamic courts, it is evident from an analysis of the case law that secular higher courts have influenced the role of Islam in the legal system through their jurisprudence: Lau ( 2006 ).

See e.g., Lau ( 2006 ) and Nelson ( 2011 ).

Art. 175A(3).

Art. 193(2).

Arts. 177(2), 203C(3).

Arts. 178 (Supreme Court), 194 (High Courts), 203C(7) (Federal Sharia Court). The text of the oath is found in the Third Schedule to the Constitution.

Arts. 179, 195.

Hussain ( 2011 ), p. 20.

Arts. 8–28.

Art. 10(3).

Art. 232(1).

Art. 232(2).

Art. 233(1).

Art. 232(2)(c).

Provisional Constitutional Order, 1999, 2-10/99 Min. I.

Section 2(1) of the Provisional Constitutional Order. 1999, 2-10/99 Min. I. stated that “[n]otwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.”

Hussain ( 2011 ), ss 11.2–11.4.

Supreme Court of Pakistan ( 2016 ).

Hussain ( 2011 ), p. 28.

Reuters ( 2012 ).

Art. 236(2).

Art. 24(4).

Art. 41(6).

Art. 69(1).

Arts. 99(2), 139(2).

Art. 105(2).

Art. 155(6).

Constitution (Amendment) Order 1985, Art. 165A(2).

Art. 212(2).

Art. 239(5).

Art. 245(2).

See, e.g., Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869.

The Objectives Resolution (1949), now annexed to the Constitution and incorporated into its text through Art. 2A, was passed by the Constituent Assembly in March 1949 and provides that “the independence of the Judiciary shall be fully secured.”

Both the Preamble and Art. 2A, incorporating the Objectives Resolution, guarantee an independent judiciary, which has been treated as an enforceable legal right by the courts, discussed below.

Art. 81(a)(i).

Arts. 81(b), 81(d).

Arts. 209(6)-209(7) (removal procedure), Arts. 179, 195 (retirement for judges of the High Courts and the Supreme Court).

Arts. 187(2), 190.

Art. 204(2).

Third Schedule.

Constitution (Nineteenth Amendment) Act, 2010, 1 (2011) and Constitution (Twentieth Amendment) Act, 2012, 5.

See discussion below.

Ghias ( 2010 ), p. 997.

Ibid , p. 998.

Supreme Court of Pakistan ( 2009 ).

Ibid , Art. XI.

Art. 209(8).

Art. 209(5).

Dawn ( 2011a ).

For a critical overview of the functioning of the Supreme Judicial Council see Niazi ( 2016 ).

Arts. 209(4), 209(6).

Siddique (2013), pp. 267–269.

Ibid , p. 302.

Iqbal ( 2015 ).

Art. 142(d).

Acts of Parliament (2014).

Art. 142(c).

Arts. 142(b), 143.

Art. 59(1).

Art. 59(3).

Arts. 73(1), 73(1A).

Arts. 51(6), 213–226.

Arts. 52, 58.

Arts. 91(4), 91(5).

Art. 91(7).

Art. 70(3).

Arts. 75(1), 75(2).

See Lau ( 2004 ) for an analysis of how judges drew upon Islamic principles to preserve their independence.

Indian Independence Act 1947, 10 & 11 Geo 6, c. 30; see Khan ( 2004 ), p. 67.

Government of India Act 1935, 26 Geo 5 & 1 Edw 8, c. 2.

Indian Independence Act 1947, 10 & 11 Geo 6, c. 30.

Newberg ( 1995 ), p. 37.

Act of Settlement 1701, 12 and 13 Will, c. 2. See also the Commissions and Salaries of Judges Act of 1760, 1 Geo 3, c. 23. See, e.g., Section 200(2)(b) of the Government of India Act 1935, 26 Geo 5 & 1 Edw 8 c. 2 that sets out the removal process for judges of the Federal Court on the grounds of “misbehaviour or of infirmity of mind or body” but only if removal was recommended by the Privy Council. Section 201 of the Act establishes that the salaries, leave, and pension benefits for judges of the Federal Court shall not be “varied to his disadvantage after his appointment.”

Newberg ( 1995 ), p. 39.

Ibid , pp. 39–40.

Ibid , pp. 40–41.

Khan ( 2004 ), p. 129.

Federation of Pakistan v Moulvi Tamizuddin Khan , PLD 1955 FC 240, p. 251.

Ibid , p. 300.

Khan ( 2004 ), p. 140.

Ibid , pp. 141–142.

Ibid , pp. 142–143.

Newberg ( 1995 ), pp. 46–47.

Ibid , p. 49.

Ibid , p. 68.

Emergency Powers Ordinance IX of 1955.

Khan ( 2004 ), p. 143.

Usif Patel v The Crown , PLD 1955 FC 387.

Ibid , pp. 391–392.

Ibid , p. 396.

Ibid , pp. 446–447.

Reference by HE the Governor-General , PLD 1955 FC 435.

For a detailed overview of the doctrine of necessity, see Wolf-Phillips ( 1979 ).

Reference by HE the Governor-General , PLD 1955 FC 435, p. 445.

Ibid , p. 448.

Ibid , p. 479.

Ibid , p. 486.

Khan ( 2004 ), p. 153.

Newberg ( 1995 ), p. 55.

Ibid , pp. 60–61.

Khan ( 2004 ), p. 158.

Newberg ( 1995 ), p. 69.

Khan ( 2004 ), pp. 197–209.

Ibid , p. 210.

Laws (Continuation in Force) Order (1958).

Khan ( 2004 ), p. 212.

The State v Dosso , PLD 1958 SC 533.

Kelsen ( 1945 ).

The State v Dosso , PLD 1958 SC 533, p. 538.

Ibid , pp. 538–539.

Ibid , p. 540.

Ibid , p. 541.

Khan ( 2004 ), p. 217.

Newberg ( 1995 ), p. 79.

Ibid , pp. 79–80.

Khan ( 2004 ), p. 216.

Pakistan’s GDP growth reached 10.4 % in 1965: World Bank ( 2015 ).

Khan ( 2004 ), p. 345.

Ibid , pp. 254–255.

Ibid , judicial review of the constitutional validity of legislation was made clear following the first amendment: ibid , p. 275.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, p. 161.

Khan ( 2004 ), pp. 323–329.

Ibid , p. 363.

Ibid , p. 375.

Ibid , pp. 375–376.

Ibid, pp. 385–388.

Ibid , pp. 406–407.

Time ( 1971 ). Bangladesh set up a war crimes court in 2010 to investigate crimes committed during the conflict: Al Jazeera ( 2010 ).

Khan ( 2004 ), p. 434.

Khan ( 2004 ), p. 437.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, p. 166. The Supreme Court adopted this position, at least in part, to refute the Attorney General’s argument that the judiciary had given tacit approval to martial law: ibid , p. 203.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, pp. 197–199.

Asma Jilani v Government of the Punjab , PLD 1972 SC 139, pp. 178–179.

Ibid , p. 163.

Ibid , pp. 184–185.

Ibid , pp. 187–189.

Ibid , p. 190.

Ibid , pp. 190–192.

Ibid , p. 204.

Ibid , pp. 205–206.

Ibid , p. 207.

Ibid , p. 208. The Supreme Court also noted that the National Assembly ratified Bhutto’s assumption of power and an interim constitution, which “may well have radically altered the situation.”

Newberg ( 1995 ), p. 129.

Ibid , p. 122.

Ibid , p. 132.

Ibid , p. 126.

The State v Zia-ur-Rehman , PLD 1973 SC 49.

Ibid , p. 66.

Ibid , p. 69.

Ibid , p. 70.

Khan ( 2004 ), pp. 467–472.

Ibid , p. 555.

For a discussion of the election results see Khan, ibid , pp. 556–562.

Ibid , pp. 563–564.

Ibid , p. 571.

Laws (Continuance in Force) Order, 1977, CMLA Order I.

Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan , PLD 1977 SC 657, p. 704.

Khan ( 2004 ), p. 581.

Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan , PLD 1977 SC 657.

Ibid , p. 692.

Ibid , pp. 692–693.

Ibid, p. 721.

Ibid , p. 694.

Ibid , pp. 698, 702.

Ibid , p. 702.

Ibid , p. 703.

Ibid , p. 705.

Ibid , p. 716.

Newberg ( 1995 ), p. 169.

Ibid , pp. 163, 168.

Ibid , p. 168.

Khan ( 2004 ), p. 599.

Zulfiqar Ali Bhutto v The State , PLD 1979 SC 38.

Khan ( 2004 ), p. 615.

Ibid , p. 617.

Ibid , p. 624.

Ibid , pp. 627–628.

Ibid , pp. 640–641. For a detailed analysis of the role of Islam in the legal system of Pakistan see Lau ( 2006 ).

Khan ( 2004 ), pp. 635–636.

Ibid , pp. 637–638.

Ibid , pp. 661–666.

Provisional Constitutional Order, 1981, CMLA Order 1.

Khan ( 2004 ), p. 647.

Ibid , p. 648.

Ibid , p. 649.

Ibid , p. 675.

Ibid , p. 697.

Ibid , p. 722.

Khawaja Ahmad Tariq Rahman v The Federation of Pakistan , PLD 1992 SC 646.

Ibid , p. 666 per Justice Shafiur Rahman.

Khan ( 2004 ), p. 734.

Ibid , p. 752.

Muhammad Nawaz Sharif v Federation of Pakistan , PLD 1993 SC 473.

Khan ( 2004 ), pp. 755–758.

Ibid , p. 793.

Ibid , pp. 793–797.

Ibid , p. 827.

Ibid , p. 833.

Ibid , p. 924; Talbot ( 2009 ), p. 392.

Khan ( 2004 ), pp. 926–933; the Kargil war involved the withdrawal of Pakistan’s forces to the Kashmir line of control and was perceived by Pakistan as an international embarrassment. General Pervez Musharraf’s address to the nation of 13 October 1999 reported that the country faced “turmoil and uncertainty” from the destruction of the nation’s institutions and economy and that the armed forces were the “last remaining viable institution” that was obligated to provide the country with “stability, unity and integrity”: Musharraf ( 1999 ).

Khan ( 2004 ), p. 783.

Ibid , pp. 784–785.

Al-Jehad Trust v Federation of Pakistan , PLD 1996 SC 324.

Ibid , p. 389.

Ibid , pp. 389, 399, 404.

Ibid , p. 365.

Ibid , p. 408.

Ibid , p. 366.

Ibid , p. 419.

Ibid , p. 428.

Khan ( 2004 ), p. 787.

Ibid , p. 788.

Ibid , p. 787.

Ibid , pp. 823–824.

Ibid , p. 825.

Ibid , pp. 825–826.

Ibid , p. 826.

Ibid , p. 829.

Asad Ali v Federation , PLD 1998 SC 161.

Al-Jehad Trust v Federation of Pakistan , PLD 1996 SC 324. Khan ( 2004 ), p. 830.

Khan ( 2004 ), p. 831.

Ibid , pp. 802–803.

Khan Asfandyar Wali v Federation of Pakistan , PLD 2001 SC 607.

Ibid , paras 164–165.

For a comparative discussion of emergency powers in India and Pakistan see Kalhan ( 2010 ).

Mahmud ( 1993 ). See also Mahmud ( 1994 ).

Mahmud ( 1993 ), pp. 1302–1305.

India’s Supreme Court developed innovative constitutional doctrines during this time, such as the basic structure doctrine, which holds that certain basic features of the Constitution cannot be changed even though the process of constitutional amendment: Kesavananda Bharati v The State of Kerala , AIR 1973 SC 1461.

Section 2(1) of the Provisional Constitutional Order 1999, 2-10/99 Min. I. stated that “[n]otwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.” President Muhammad Rafiq Tarar continued as President: Khan ( 2004 ), p. 933.

Section 7 of the Provisional Constitutional Order 1999, 2-10/99 Min. I.

Oath of Office (Judges) Order 2000; see Khan ( 2004 ), pp. 934–935.

Khan ( 2004 ), p. 935.

Qureshi ( 2010 ), p. 491.

Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869.

Ibid . Although presumably new judges would take the place of those who refused to take a new oath to keep the courts operational, as happened with the six judges of the Supreme Court who refused to take the fresh oath.

The Times of India ( 2008 ).

Legal Framework Order, 2002, Chief Executive’s Order No 24 of 2002. Note that Musharraf had dismissed President Rafiq Tarar and appointed himself President on 20 June 2001: Qureshi ( 2010 ), p. 492.

Qazi Hussain Ahmed’s Case , PLD 2002 SC 853.

Ibid , para 61.

Legal Framework Order, 2002, Chief Executive’s Order No 24 of 2002.

Constitutional Petition No 36 of 2002 , para 7.

Constitutional Petitions Nos 13, 14, 39 & 40 of 2004 & 2 of 2005 .

Ibid , para 30.

Ibid, para 40.

Supreme Court Bar Association v Federation of Pakistan , PLD 2002 SC 939.

Ibid , p. 981.

Ibid , pp. 981–982.

Ibid , p. 983.

Ibid , p. 987.

Huq ( 2003 –2004), p. 32.

Talbot ( 2009 ), pp. 417–418.

United Nations Human Rights Council ( 2008 ), para 233.

Ibid , para 234.

Constitutional Petition No 21 of 2007 , paras 70, 102.

Ibid , para 54.

Ibid , para 55.

Ibid , paras 57, 59.

Ibid , paras 122, 134.

Ibid , para 157.

Ibid , para 198.

Ibid , para 279 per Justice Muhammad Nawaz Abbasi.

Talbot ( 2009 ), pp. 419–420.

Provisional Constitutional Order No 1 of 2007 (amended 15 November 2007).

Harvard Law Review Notes ( 2010 ), p. 1715.

Ibid , pp. 1716–1717.

Ibid , p. 1719.

Ibid , p. 1720.

Ibid , p. 1725.

Talbot ( 2009 ), p. 428.

Ibid , p. 429.

Ibid , p. 432.

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789 (short order), PLD 2009 SC 879 (full reasons).

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, p. 799.

Ibid , pp. 799–800.

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, p. 800.

Ibid , p. 802.

Ibid , pp. 801–802.

Ibid , pp. 800–801.

Ibid , p. 804.

Ibid , pp. 804–805.

Constitution (Seventeenth Amendment) Act, 2003, 3.

Constitution (Eighteenth Amendment) Act, 2010, 10.

See e.g. , Waseem ( 2012 ), pp. 28–30 who notes that the ‘personal aura’ of the Chief Justice played a role in shaping the direction of the court in looking outward instead of a needed inward focus to improve the functioning of the justice system. See also an illuminating analysis by Kalhan ( 2013 ) who argues that the judiciary in Pakistan has placed the country in a ‘gray zone’ of institutional imbalance because of its unqualified view of judicial independence, which needs to achieve a new balance between autonomy and restraint. See also Ahmed ( 2015 ) for an account of judicial activism during this period and Cheema ( 2016 ) for an account that focuses on the nature and consequences of the politics of the Chaudhry Court.

Art. 184(3) of the Constitution provides the Supreme Court with the power to make an order if it considers that there is a question of public importance relating to any of the fundamental rights guaranteed in Chapter I of Part II of the Constitution.

Ghias ( 2010 ).

Ibid , p. 999 suggests that this may have resulted from judicial exchanges between Pakistan and India.

Alam ( 2008 ), p. 2, see generally Menski et al. ( 2000 ), Khan ( 2011 ), and Khan (Public Interest Litigation) ( 2015b ).

Alam ( 2008 ), p. 2.

Ibid , p. 3 notes the potential influence of the public interest model developed by the Indian Supreme Court.

Benazir Bhutto v President of Pakistan , PLD 1988 SC 388.

Ibid , pp. 416, 488, cited in Alam ( 2008 ), p. 2 who refers to a quote from the former Chief Justice Ajmal Miam who describes the adversarial system as an “inherited evil” as it prevents large groups of persons from obtaining constitutional justice.

Alam ( 2008 ), pp. 8–9.

Alam ( 2008 ), p. 5 highlights the case of M. Ismail Qureshi v M. Awais Qasim , 1993 SCMR 1781, where the Supreme Court converted private litigation into public interest litigation, inviting and hearing from a wide range of stakeholders.

Supreme Court of Pakistan ( 2014b ).

Supreme Court of Pakistan ( 2011 ), p. 129.

Supreme Court of Pakistan ( 2011 ), p. 129; Hussain ( 2011 ), p. 15 notes that legislative reform was brought about through the system in relation to the Bonded Labour System (Abolition) Act, 1998, 19 the Prohibition of Smoking and Protection of Non Smokers Health Ordinance, 2002, F. No. 2(1)/2002-Pub., the Prohibition of Kite Flying (Amendment) Act, 2009, 14 and the Human Organs and Tissues Act, 2010, 6 among others.

Hussain ( 2011 ), p. 15.

Ghias ( 2010 ), pp. 991–996.

Dharshan Masih’s Case , PLD 1990 SC 513.

See e.g., Suo Motu Case No 14 of 2009 , an action based on a press clipping in the Daily News about land dealings.

Ghias ( 2010 ), p. 995.

Supreme Court of Pakistan ( 2012 ).

After visiting Pakistan in 2012, Special Rapporteur Gabriela Knaul stated that she commended “the use of inherent powers of the Supreme Court in recent cases related to gross human rights violations” although she called for clear criteria on the use of suo motu : Dawn ( 2012d ).

Hussain ( 2011 ).

Alam ( 2008 ), pp. 4–5.

Ibid , pp. 12–13.

Ghias ( 2010 ), p. 992, see Saad Mazhar v Capital Development Authority , 2005 SCMR 1973.

Ghias ( 2010 ), p. 993.

Ibid , see Maulvi Iqbal Haider v Capital Development Authority, PLD 2006 SC 394.

Ghias ( 2010 ), pp. 993–994.

Constitutional Petition No 9 of 2006 & Civil Petition Nos 345 & 394 of 2006 .

Ibid ; Ghias ( 2010 ), pp. 994–995.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165.

See Siddique ( 2010 ) for a discussion of the Eighteenth Amendment leading up to the case.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, p. 1180; Art. 239(5). The Supreme Court itself has held that it did not have the power to look at the substance of constitutional amendments in Constitutional Petitions Nos 13, 14, 39 & 40 of 2004 & 2 of 2005 .

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, p. 1180.

Ibid , p. 1181.

Ibid , p. 1182.

Nadeem Ahmed v Federation of Pakistan , PLD 2010 SC 1165, pp. 1183–1184. The decision has been criticised by commentators on the basis that it invokes judicial independence in a case where the process of the commission is simply a matter of mechanics not principle and that the judiciary left little scope for parliamentary contributions: Sattar ( 2012 ), pp. 85–86.

19th Amendment Draft (2010).

Munir Hussain Bhatti v Federation of Pakistan , PLD 2011 SC 407.

Ibid , p. 443.

Ibid , pp. 444–445.

Ibid , p. 446.

Rizvi (2015). See also Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869, discussed above.

Constitutional Petition No 12 of 2010, etc. , p. 901.

Iqbal ( 2011 ).

See Suo Moto Action Regarding Death of more than 90 Heart Patients under Treatment in Punjab Institute of Cardiology on Account of Spurious Drugs , in which suo motu action was taken in relation to the “death of more than 90 heart patients under treatment in Punjab Institute of Cardiology on account of spurious drugs”. It is not clear from the judgment itself on what legal grounds the suo motu action was initiated although suo motu is seen as connected to fundamental rights: see Art. 184(3).

The Nation ( 2012 ).

CMA Nos 4343, 5436 and 5869 of 2014 in SMC No 1 of 2005 .

CMA No 3221/2012 in SMC No 25/2009 , para 1.

Supreme Court of Pakistan (2015).

Dawn ( 2012a ).

Nizami ( 2012 ).

Suo Motu Action Regarding Allegation of Business Deal between Malik Riaz Hussain and Dr. Arslan Iftikhar Attempting to Influence the Judicial Process , para 6.

Dawn ( 2011b ).

Dawn ( 2011c ).

Dawn ( 2012d ).

United Nations General Assembly ( 2013 ), pp. 14–15.

Dawn ( 2012b ).

National Reconciliation Ordinance (2007).

Discussed in Muhammad Azhar Siddique v Federation of Pakistan , PLD 2012 SC 774, pp. 794–795.

Ibid , p. 795.

Quoted ibid , p. 798.

Art. 63(2).

Muhammad Azhar Siddique v Federation of Pakistan , PLD 2012 SC 774.

Ibid , p. 807.

Ibid , p. 811.

Ibid , p. 817.

Walsh ( 2012 ).

Baz Muhammad Kakar v Federation of Pakistan , PLD 2012 SC 866.

Ibid , p. 887.

Khan (Revokes) ( 2015a ).

CMA No 592-K/13 in SMC No 16 of 2011, etc. , para 3.

Ibid , paras 8, 10.

Dawn ( 2012c ).

The News ( 2014 ).

Constitutional Petition No 9 of 2014 .

Ibid , para 2.

Constitution (Twenty-First Amendment) Act, 2015, 1.

Shapiro ( 1986 ), p. 32.

Reference No 1 of 2012 , PLD 2013 SC 279.

Ibid , para 32.

Sh. Riaz-Ul-Haq v Federation of Pakistan , PLD 2013 SC 501.

Ibid , para 42.

Omer ( 2016 ).

Dossani Travels Pvt Ltd v Messrs Travels Shop Pvt Ltd , PLD 2014 SC 1.

Ibid , para 26.

Ibid , para 45.

Objectives Resolution (1949), Annex to the Constitution of the Islamic Republic of Pakistan.

Ibid , p. 1180.

See also Asma Jilani v Government of the Punjab, PLD 1972 SC 139 (no privative clause could prevent the Supreme Court from deciding a legal controversy argued before it); The State v Zia-ur-Rehman, PLD 1973 SC 49 (Supreme Court holds the power to interpret and apply any provision of the Constitution including jurisdiction-limiting terms); Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan, PLD 1977 SC 657 (Supreme Court held the jurisdiction to adjudicate upon the legal validity of government acts notwithstanding privative clauses of the new legal order); Zafar Ali Shah v General Pervez Musharraf, Chief Executive of Pakistan, PLD 2000 SC 869 (Supreme Court retained its review powers despite a privative clause); Constitutional Petition No 21 of 2007 (constitutional privative clause could not immunise acts done in bad faith or without legal jurisdiction).

See e.g., Supreme Court Bar Association v Federation of Pakistan, PLD 2002 SC 939 and Sindh High Court Bar v Federation of Pakistan, PLD 2009 SC 789 (short order), PLD 2009 SC 879 (full reasons) respectively.

See, e.g., Siddiqi ( 2015 ), where the author writes that “the challenge for any court remains a balancing act of being powerful but accountable”.

Constitutional Petition No 21 of 2007 .

See Dawn ( 2011d ).

Haider ( 2015 ).

For an outline of factors that can reduce or maintain judicial independence in dominant party systems see Tushnet ( 2015 ).

Walsh ( 2013 ).

Supreme Court of Pakistan ( 2014a ).

Federation of Pakistan v Moulvi Tamizuddin Khan , PLD 1955 FC 240.

Although this approach has been criticised, particularly in the context of ruling on the legal validity of military intervention: see, e.g. , Mahmud ( 1993 ) and Mahmud ( 1994 ).

Dawn ( 2013 ).

Democracy Reporting International ( 2011 ), p. 2.

Aqil Shah writes that “military organizational choices are more decisively shaped by the extent to which the military believes in the legitimacy of democratic institutions, including the constitution”: Shah ( 2014 ), p. 258.

Dawn ( 2012e ).

Siddiqi ( 2015 ). See also an analysis of the Supreme Court following the Lawyers’ Movement in Siddique ( 2015 ).

United Nations General Assembly ( 2013 ).

Sindh High Court Bar v Federation of Pakistan , PLD 2009 SC 789, pp. 799–800.

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Pakistani judge uses ChatGPT to make court decision

Asia pakistan.

After exchanges with ChatGPT, judge used his own arguments as basis for the decision

Islamabad: In a trailblazing move, a judge in Pakistan used ChatGPT for a court decision, making it the first time a legal decision has been made in the country with the help of an artificial intelligence (AI) text-generating chatbot.

Additional district and sessions judge Mohammad Amir Munir, who presides over the Phalia court in Mandi Bahauddin district of Punjab province, said he used the AI tool to ask legal questions about the case and whether a juvenile accused of a criminal offence could be entitled to post-arrest bail.

The judge said that the purpose of the experiment was to test the capabilities of AI technology and determine whether ChatGPT can be useful in assisting the justice system to pass efficient and intelligent judicial orders and judgments in accordance with the law.

He said that the decision to allow the pre-arrest bail application was not based on the answers provided by ChatGPT but on the human judicial mind.

“My decision to allow this pre-arrest bail application is not based on the answers to be provided by the artificial intelligence program Chatbot GPT-4,” Judge Munir wrote in the decision dated March 29, 2023.

AI potential in judicial system

However, the judge still decided to test the capabilities of GPT-4 by asking it some questions regarding the case and found that the “AI technology has great potential to be explored by the judicial system of Pakistan.” In his court order, Munir observed that “if judges develop friendship with the chatbot programs like ChatGPT-4 or Google Bard, and put right questions to it based on available data, facts and circumstances of a case”, it can help “reduce the burden on the human judicial mind by providing relevant and reliable answers.”

The experiment has highlighted the need for further discussion as well as the need for legal and tech experts to work together to research AI integration into the judicial system in a responsible and effective manner.

Case and AI responses

The case involved a 13-year-old who was charged with kidnapping a nine-year-old boy and transporting him to a desolate location, according to the police report. The juvenile was also accused of attempting to commit rape which is punishable by up to 10 years. The court allowed bail to the juvenile petitioner against surety bonds worth Rs50,000.

Munir included the chatbot’s full responses in the decision, including his own insights that the GPT-4 answers were “impressive” and also “based on correct appreciation of the settled law in Pakistan on such type of bail.”

According to the court document, the legal questions entered into the AI tool included “Can you cite case law where bail in such like cases is allowed?” and “Can you quote some research article on juvenile pre-arrest bail in rape or other cases under Pakistan laws”.

After exchanges with ChatGPT, the judge used his own arguments as the basis for the decision. The Pakistani judge’s experimentation has raised important questions about the role of AI in the judicial system.

ChatGPT, an AI text-generating chatbot created by OpenAI, can produce human-like responses, write essays and code, and provide information on various topics using a short prompt. The latest and advanced GPT-4 is available to paid users.

The chatbot is making waves in the legal profession, allowing lawyers to efficiently and swiftly analyse large volumes of legal documents. It is also useful for legal research and to generate initial drafts of legal documents. Although ChatGPT can assist lawyers, it is considered a tool and not a replacement for human legal expertise.

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Guest Essay

Don’t Overlook the Power of the Civil Cases Against Donald Trump

By David Lat and Zachary B. Shemtob

Mr. Lat writes about the legal profession. Mr. Shemtob is a lawyer.

For months now, the country has been riveted by the four criminal cases against Donald Trump: the New York state case involving hush-money payments to an adult film star, the federal case involving classified documents, the Georgia election-interference case and the federal election-interference case. But some have been postponed or had important deadlines delayed. The only case with a realistic shot of producing a verdict before the election, the New York case, involves relatively minor charges of falsifying business records that are unlikely to result in any significant prison time . None of the other three are likely to be resolved before November.

It’s only the civil courts that have rendered judgments on Mr. Trump. In the first two months of 2024, Mr. Trump was hit with more than half a billion dollars in judgments in civil cases — around $450 million in the civil fraud case brought by the New York attorney general, Letitia James, and $83.3 million in the defamation case brought by the writer E. Jean Carroll.

For Trump opponents who want to see him behind bars, even a half-billion-dollar hit to his wallet might not carry the same satisfaction. But if, as Jonathan Mahler suggested in 2020, “visions of Donald Trump in an orange jumpsuit” turn out to be “more fantasy than reality,” civil justice has already shown itself to be a valuable tool for keeping him in check — and it may ultimately prove more successful in the long run at reining him in.

The legal system is not a monolith but a collection of different, interrelated systems. Although not as heralded as the criminal cases against Mr. Trump, civil suits have proved effective in imposing some measure of accountability on him, in situations where criminal prosecution might be too delayed, divisive or damaging to the law.

To understand why the civil system has been so successful against Mr. Trump, it’s important to understand some differences between civil and criminal justice. Civil actions have a lower standard of proof than criminal ones. In the civil fraud case, Justice Arthur Engoron applied a “ preponderance of the evidence ” standard, which required the attorney general to prove that it was more likely than not that Mr. Trump committed fraud. (Criminal cases require a jury or judge to decide beyond a reasonable doubt that the defendant committed a crime, a far higher standard.) As a result, it is much easier for those suing Mr. Trump in civil court to obtain favorable judgments.

These judgments can help — and already are helping — curb Mr. Trump’s behavior. Since Justice Engoron’s judgment in the civil fraud case, the monitor assigned to watch over the Trump Organization, the former federal judge Barbara Jones, has already identified deficiencies in the company’s financial reporting. After the second jury verdict in Ms. Carroll’s favor, Mr. Trump did not immediately return to attacking her, as he did in the past. (He remained relatively silent about her for several weeks before lashing out again in March.)

Returning to the White House will not insulate Mr. Trump from the consequences of civil litigation. As president, he could direct his attorney general to dismiss federal criminal charges against him or even attempt to pardon himself if convicted. He cannot do either with civil cases, which can proceed even against presidents. (In Clinton v. Jones , the Supreme Court held that a sitting president has no immunity from civil litigation for acts done before taking office and unrelated to the office. And as recently as December, the U.S. Court of Appeals for the District of Columbia Circuit made clear that even if the challenged acts took place during his presidency, when the president “acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”)

It may also be difficult for Mr. Trump to avoid the most serious penalties in a civil case. To appeal both recent civil judgments, Mr. Trump must come up with hundreds of millions of dollars in cash or secure a bond from an outside company. Although he managed to post a $91.6 million bond in the Carroll case, he initially encountered what his lawyers described as “ insurmountable difficulties ” in securing the half-billion-dollar bond he was originally ordered to post in the civil fraud case. An appeals court order last week cut that bond to $175 million — but if Mr. Trump cannot post this bond, Ms. James can start enforcing her judgment by seizing his beloved real estate or freezing his bank accounts. And even though it appears that he will be able to post the reduced bond, the damage done to his cash position and liquidity poses a significant threat to and limitation on his business operations.

Furthermore, through civil litigation, we could one day learn more about the inner workings of the Trump empire. Civil cases allow for broader discovery than criminal cases do. Ms. James, for instance, was able to investigate Mr. Trump’s businesses for almost three years before filing suit. And in the Carroll cases, Mr. Trump had to sit for depositions — an experience he seemed not to enjoy, according to Ms. Carroll’s attorney. There is no equivalent pretrial process in the criminal context, where defendants enjoy greater protections — most notably, the Fifth Amendment privilege against self-incrimination.

Finally, civil cases generally have fewer externalities or unintended consequences. There are typically not as many constitutional issues to navigate and less risk of the prosecution appearing political. As a result, civil cases may be less divisive for the nation. Considering the extreme political polarization in the United States right now, which the presidential election will probably only exacerbate, this advantage should not be underestimated.

David Lat ( @DavidLat ), a former federal law clerk and prosecutor, writes Original Jurisdiction , a newsletter about law and the legal profession. Zachary B. Shemtob is a former federal law clerk and practicing lawyer.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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An earlier version of this article misstated Arthur Engoron’s title. He is a justice on the New York State Supreme Court, not a judge.

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